Dress code is sex-based discrimination: tribunal

B.C. bar worker wins human rights claim after refusing to wear bikini top at bar

A British Columbia woman who was asked to wear a bikini top by her employer was awarded nearly $6,000 in damages for lost wages, tips and injury to her dignity, feelings and self-respect.

Andrea Mottu starting working at the Barfly Night Club in New Westminster, B.C., in March 2000 when she was 21. The work at the nightclub provided her main source of income. Her regular shifts were four hours on a Friday night and five hours on Saturday night.

Her hourly wage was $11.87 but the main source of her earnings was tips, which amounted to about $75 on Friday and upwards of $150 on Saturday.

Her job entailed selling drinks from the “beer barrel.” The barrel was filled with ice and located near the front entrance. It was filled with ice and a variety of popular beers and coolers.

The standard work attire at the club was a black top and skirt or pants. Mottu enjoyed her job and had received no complaints about her performance. The head server said she was an “awesome employee” and probably the best beer barrel server.

But things changed on April 12, 2001. That night the British Columbia Institute of Technology was holding its annual fundraiser at the club. The fundraiser had a beach theme. April 12 was a Thursday — not one of Mottu’s regular shifts — but the event was sold out so extra staff were brought in to handle the crowd. Mottu was scheduled to work the beer barrel.

Cass MacLeod, the bar’s owner, asked each group of staff members to come up with a consistent costume for the evening. The regular Thursday night servers met and decided they would wear bikini tops and surfer shorts. The bartenders chose to wear Hawaiian shirts and shorts while the door staff chose Hawaiian shirts and khaki pants.

Mottu was not aware of the meeting or what the staff had decided to wear. On April 11, MacLeod phoned her and another server to advise them of the dress code for the fundraiser. He told them they could choose to work the shift and wear the attire or not work the shift and not be paid. The other server declined to work.

Mottu said she would work as long as she could wear a summer dress over the top. MacLeod said he wanted all of the servers dressed the same way, and if she had a problem he would find someone else to work the shift.

She agreed to work the shift but then phoned her union to find out if she could be compelled to wear the bikini top. Her union told her she did not have to and then placed a call to MacLeod. Mottu also phoned the Human Rights Commission and was told to start documenting events.

She arrived at the bar dressed in layers. She wore a bikini top underneath a tank top with a sweater over top. She planned to leave the sweater on unless she got too hot. Her purpose was to make a point to MacLeod that the bikini top was inappropriate.

MacLeod, who usually greeted Mottu in a friendly manner when she arrived, didn’t acknowledge her. When the beer barrel was brought to her it contained only one type of cooler and a premium beer.

She had been expecting her normal supply of Canadian beer, which was to be the special that night. With the small selection she wouldn’t be able to sell as much and therefore would receive less tips.

She asked MacLeod why she wasn’t allowed to sell the drink special, and he — in her opinion — snapped back at her and said they were trying something different. She became upset at how she was being treated and told a co-worker she was too upset to work and left for the night.

A replacement worker was brought in and allowed to sell the special from the beer barrel.

Before her next shift she went to the club to talk to MacLeod and apologize for leaving and to explain she felt she was being treated unfairly. He told her he didn’t like working with someone who went to the union first before talking to him.

Mottu assumed she had been fired and left. She did not report to work that night. The next day MacLeod phoned 15 minutes before her shift started to ask if she was coming to work. Mottu said she wasn’t because she thought she had been fired.

MacLeod told her she had not been fired, and she agreed to come in. When she arrived late — the drive from her home to the club was longer than 15 minutes — she was brought into the office and given two letters of reprimand. One for missing work the night before, and one for being late that night.

Another employee was working the beer barrel so Mottu was given a bucket of ice, put in a dark corner at the rear of the club and given a supply of an unpopular, discontinued drink.

She filed her human rights complaint on April 16, 2001. She also went to the media, and stories about what had happened appeared in the newspaper and on television.

She continued to work and the bar continued to put her in the back corner with the unpopular drink. A bartender at the nightclub — who was also MacLeod’s brother — called her a “loser” and said everyone thought it would be better if she left. Her hours were cut shortly after that. Eventually in May she hit the breaking point and was not able to work because of stress. Her doctor provided medical documentation.

The British Columbia Human Rights Tribunal found that, through its actions, the nightclub was trying to force Mottu to quit.

“(She) chose not to wear an outfit that was gender specific and that she believed was sexual in nature,” Barbara Junker, the tribunal member, wrote in her decision. “I compare this to the fact the male bartenders and door staff were not required to wear something that was gender-specific or carried sexual connotations. I find this constitutes discriminatory conduct and that the actions of the respondents on and after the (BCIT fundraiser) constitute discrimination against Ms. Mottu in the terms of her employment based on her sex.”

The tribunal awarded Mottu $2,917.97 for lost wages and tips and tacked on $3,000 for injury to dignity, feelings and self-respect because of the club’s “deliberate” conduct that was intended to humiliate her after she refused to wear the bikini top.

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